Wednesday, August 24, 2011

Custody Reform: S.847 – Shared Custody Above All Else?

The second senate bill that proposes amendments to the current custody statute is S00847. This proposal was filed in the Senate on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011.

Before we look at what is being added, it's important to understand what this bill proposes to delete. Paragraphs 2-5 of the original statute define sole legal custody, shared legal custody, sole physical custody and shared physical custody.

Paragraphs 6-9 of the original statute create a presumption of temporary shared legal custody (with some exceptions for abuse or restraining order situations) and state that there shall be no presumption for permanent shared legal or physical custody and no presumption for temporary shared physical custody.

By deleting these paragraphs this proposed bill essentially deletes any distinction between legal or physical custody.

In place of these traditional distinctions the proposed bill inserts the following language:

To ensure minor children of frequent and continuing contact and a meaningful relationship with both parents after the parents have separated and divorced, it becomes necessary to encourage parents to share in the rights and responsibilities of child care and rearing. Primary considerations in awarding custody shall be given to both parents jointly in order to secure the best interest of the children by providing continuation of parent-child relationships. It is therefore the presumption of the courts that in most cases shared custody should be considered paramount to ensure the happiness and welfare of the children.

In all separation and divorce proceedings involving minor children, it shall be a presumption of the court that both parents have an inalienable right to share temporary and final legal, as well as physical, custody of the children unless one or both parents: (1) are proven to be unfit to such an extent and in such a manner as to cause immediate physical or emotional danger or damages to the children, (2) abandon the children, or (3) voluntary relinquish custody. An agreement signed by both parents defining the shared arrangements shall be the order of the courts, provided the parents have been apprised of their custody rights, or unless clear and convincing findings indicate that such an order would not be in the best interest of the children.

Only after the parents have attempted and failed to reach an agreement on the shared living arrangements of the children shall the court determine the shared arrangements. The children shall also have the right to reside and spend an equal amount of time with each parent, provided this sharing arrangement does not interfere nor disrupt the school term. If equal time is neither practical nor possible, the right of one parent to a minimum guaranteed amount of time per year with the children shall be established and protected by the courts.

The first paragraph indicates that shared custody (without reference to a legal/physical distinction) should be the default in most cases and states an ideology that shared custody is in in the best interest of the children.

The second paragraph indicates a presumption of both temporary and final, shared legal and physical custody of the children. This is a bit confusing since the definitions of legal and physical custody have been deleted. The only exceptions to these presumptions are enumerated specifically and include finding a parent unfit to the extent that they pose an immediate danger to the children, finding that a parent abandoned the children, or if a parent voluntarily relinquishes custody.

There is also a presumption that shared custody agreements will be enacted as court orders absent "clear and convincing evidence" indicating that the order is not in the best interest of the child. This is a much higher standard than the current statute, but practically speaking may not be much different than current practice. The Judges do not typically override parties' agreements for custody anyway.

The third paragraph creates a presumption of equal time for the children with each parent so long as such a schedule doesn't interfere with school. This takes the shared custody presumption one step further by specifying the importance of equal time. Even if equal time is not possible the proposed bill requires a minimum guaranteed amount of time with each parent.

Conclusion

There are numerous practical problems with this proposed bill. First, the deletion of the legal and physical custody definitions is inconsistent with still using those terms later in the statute. Second, the substitution of an absolute presumption for shared custody and equal time ignores certain instances where this may not be appropriate. As discussed in previous posts, equal time is not appropriate for very young children.

Furthermore, equal time is not appropriate in cases of abuse. The deletion of language relating to restraining orders and past abuse and the substitution of the suggested language would require a much higher standard be met to restrict parenting time. We have previously expressed concern about this type of language erring on the side of parent's rights above erring on the side of protecting children. The primary concern should be children's safety and development first, even before the rights of parents.

Based solely on the practical inconsistencies of this bill we could not endorse it. In addition, as we have indicated above, the presumption of shared physical custody and equal time above all other considerations goes much too far. S00659 went a little too far in our opinion but would be much preferable to this proposed bill.

To read more about Shared Parenting in Massachusetts, check out the following pages:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.

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